Bluffing depends on uncertainty. Did the Capitol Police really have a history of discrimination? Did the officer really use excessive force? Does McKinney have solid evidence to back up her claims? And how much were the Capitol police willing to pay - in the currency of reputation and credibility - in order to find out?

Whatever you think of McKinney, it was hard not to be impressed by the way that she kept raising the stakes. It would have been hard enough for federal prosecutors to take on a member of congress in any circumstance, but she put them on notice that they might be publicly branded racists - and perhaps face a civil rights lawsuit - if they filed charges against McKinney. Under that sort of pressure, no one would blame them for backing off.

I think it isn't so much a bluff as it is an exploitation of people's pathological avoidance of conflict. People have been socially trained to hate fighting, and they'll do anything they can to avoid it, so an aggressive personality can pretty much write its own ticket just by making everything into a confrontation.

It's like that "Dilbert" cartoon, where Dogbert goes to a company and starts shouting at people, and by the end of the day he's the CEO simply because everyone was scared of him.

Good point. High risk bluffs work where the bluffer owns a near crushing monopoly on the chips, where one's opponent is reduced to the meager resources of playing "security guard" to save what may be his last job, with too few chips to call or raise, and folds in the uncertainty of cards out of the blind. Something smells of simple ego in this case; her changing story is nothing but a "tell." She's twitching.

And since ego is her high hand, the only other bluff is pure meanness. But, as a poker play, McKinney ain't got the ball-busting-bitch-from-hell-game-face that Sigourney Weaver had in "Alien" – "get away .. you bitch!"

This article for me emphasizes much of what has always bothered me about Prof. Lubet -- he seizes on a metaphor that explicitly permits lying as an acceptable practice (thus apparently legitimizing what would, in all other circumstances, be viewed as repugnant behavior).

If McKinney is correct about what was happening, that's really offensive. If she's wrong (which is what I suspect) her own behavior is shocking and disturbing. Either way, this situation is pretty ugly. But all Lubet wants to do is use it to sell his new book, and point out what a fascinating strategic game it all is.

When its just trial strategy, Lubet has many useful insights. But when he tries to talk about everyday life, I find that he hasn't reflected adequately about how an adversary trial should be different than the way that people behave in their daily lives.

If one is prepared to concede that all of life's relationships have only winners and losers, then life is indeed no more than a poker hand. In that way, when McKinney repeats a lie often enough, she's a good strategist, not simply a liar.

But even in Poker there are rules. Why wouldn't Lubet suggest instead that a lie is no different than dealing from the bottom of the deck, i.e. cheating, and therefore condemn her behavior?

Marghlar and Pogo: Analysis is different from moral evaluation. Analysis needs to be morally dispassionate if it's going to be effective. That doesn't mean that moral evaluation is wrong or unnecessary, just that it's a different ball game.

I don't read Lubet's post as endorsing McKinney. And yes, Marghlar, it is a fascinating strategic game. (I say that even though I'm not selling any strategy books.)

Analysis is about what is, not about what should be. If you mix those up, you get shoddy analysis and shoddy moral reasoning.

Re: "Analysis is different from moral evaluation. Analysis needs to be morally dispassionate if it's going to be effective."

Matt: My second point was a 'rules-based' and thus dispassionate comment, in that Lubet could just as easily recognized that cheating isn't allowed in Poker, and McKinney is dealing from the bottom of the deck. But he prefers the 'bluff' category because it sounds less judgemental.

But just try to get away with cheating at high-stakes poker, and see how dispassionate people are.

Matt: If Lubet was suggesting that, by treating such issues with the kind of strategic calculation that is appropriate in a poker game, McKinney is doing something creepy, I might be more interested. But from reading the article, he seems to tacitly approve of treating such topics as opportunities for strategizing. That's what creeps me out about the article.

McKinney is a public servant. To suggest that she is using threats of civil litigation as a political game is a serious charge -- it shouldn't be made light of. If it's true (and it might be) it's deplorable. Calling such conduct a "bluff" minimizes the ethical ramifications of bringing false charges against another public servant. Poker may be a game, but charges of racisim aren't. That's why the article rubs me the wrong way.

The critical difference is that in poker, misrepresentation is part of the accepted rules, whereas in life, it is considered unethical.

Lubet writes: "Whatever you think of McKinney, it was hard not to be impressed by the way that she kept raising the stakes. "

That carries a connotation of approval of this sort of behavior. And that's why I can't view this article as mere dispassionate analysis.

Interesting rips on Lubet as endorsing a less than honorable, if not a lying, game theory approach to practice.

I didn't read it that way. Maybe I'm wrong. On my read, I'd say that even if you sell your soul to ADR (alternative dispute resolution), then you've still got to know when to hold ‘em, when to fold ‘em, when to count your money, when to walk away – when the process turns adversarial and when uncertainty is involved.

Bluffing's a part of that ecology.

There's simply no in-house group case testing of one's own case with colleagues that can reveal the hand of the other side absent formal discovery. I suppose some Bayesian statistic or some racheted math version of the unitary equations lifted out of quantum mechanics could resolve all "uncertainty," as in the novel "Eudemonic Pie," where quantum experts bested a house casino by eliminating all "uncertainty."

But, that's not the real world. We face "uncertainty." In adversarial ecologies. Lubet's axiom applies in "uncertain" cases turned adversarial. While bluffing may lead to an unnecessary escalation of an adversarial clime, and while the bluffing animus may cause blindness to ADR options, still, the "noble lie" of biological mimesis (bluffing by puffing) is a tactical behavioral adaptation throughout the animal kingdom. It's simply here to stay. Bluffing may be a lie; but, doesn't have to be.

Maybe I missed something with Lubet; if so, then it got past me quicker than the neural response times discovered by Libet, so I'm hopelessly biased. I just don't see it.

I agree she is playing her hand correctly but it’s really not that brilliant. Just show me how she can lose. If she prevails great for her, if the officer is shown to be correct her base will most probably still believe her. The possible downside would be the members refusing to seat her and that will never happen.

And, damn, I had a date set with her tonight (or, one like her: I get the hairdos confused), so now what?

But, if hell is where to live, I must go – then the pleasures of certain agitations are well worth the price of admission (am I bluffing?), so instead of being "all in" with her, maybe I'm just going to hell, up the ante ;).

I agree she is playing her hand correctly but it’s really not that brilliant. Just show me how she can lose. If she prevails great for her, if the officer is shown to be correct her base will most probably still believe her. The possible downside would be the members refusing to seat her and that will never happen.

You forget the larger downside (for Democrats at least but for McKinney if she gets part of the blame): this serves as fodder for GOP GOTV and fundraising efforts for 2006 and helps to rally their base by reminding them that as upset as many of us are with the GOP leadership, McKinney and the members who supported her at her press conference (some of whom would be Committee Chairs in a Democrat-controlled House) is a perfect example of why Democrats are worse.

"this serves as fodder for GOP GOTV and fundraising efforts for 2006 and helps to rally their base by reminding them that as upset as many of us are with the GOP leadership, McKinney and the members who supported her at her press conference"

Didn't Ana Marie Cox say something on Fox a few weeks ago, along the lines that the problem with McKinney is that she tars by assocaition, that is, makes all democrats look a little crazy to be in the same party?

I don't know how Lubet can chalk McKinney's maneuverings up as a win. From where I sit, it looks like she's in some trouble. I question the choices she has made.

Since she was going to be forced by Dem leadership into issuing an apology anyhow, so she should have done it on the spot, or soon thereafter, and tried to settle things out of court. The incident would be chalked up to Crazy McKinney, and she'd be done with it and go back home to win re-election from the idiots who keep sending her to Congress. Instead, she upped the ante considerably, and now she will probably face assault charges.

Her "the man's pickin' on me" defense may shore up her base at home, and may even play with a D.C. jury given its typical makeup, but she will still be facing serious charges with a potential for a catastrophic loss, and D.C. juries do send an awful lot of black people to prison, so I'm not sure the race card will be her trump card. The best result she can get after a trial is acquittal - and even then she's still the nutty Member who punched a security guard. The worst result is a felony conviction, and she's still the nutty Member. The best result she could have had from the apology, is that nothing legal occurs, and she's still the nutty Memeber. The worst outcome would be that she could face charges and a conviction.

Seems to me if I was advising a client to gamble, I'd advise them to try the apology route first, since it's the only route that potentially avoids the risk of trial completely, while offering a chance to make the whole thing go away questly.